Thursday, October 20, 2011

“Clinically Proven” Help-Baby-Sleep Labeling Could Be Deceptive

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Johnson & Johnson’s labeling of its baby bath products as “clinically proven” to help babies sleep better could be deceptive and misleading in violation of the New Jersey Consumer Fraud Act, but a purchaser’s allegations of ascertainable loss were inadequate to establish a cause of action, the federal district court in Trenton has ruled.

The labels did not just make vague or highly subjective claims of simple superiority that could be considered puffery. The incorporation of the words “clinically proven” transformed a statement that might otherwise be considered puffery—the products would help babies sleep—into something that appeared to be both specific and measurable, according to the court.

Ascertainable Loss

In asserting ascertainable loss in a class action complaint, the purchaser alleged that J&J charged a premium of at least $1.00 for the products and that comparable products cost at least twenty-five percent less. However, the purchaser did not allege the price she paid for the products, their price generally, or the price of comparable products. The allegations of ascertainable loss were unsupported conclusory statements insufficient to withstand a motion to dismiss, the court determined.

The purchaser’s claims were dismissed without prejudice because it was conceivable that she could plead ascertainable loss with specificity, the court said.